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Access to documents: New draft shows how far the EU is from real freedom of information

01 January 2001

The latest text of the new code of access to EU documents prepared by the Swedish Presidency shows up the different positions of the Council, Commission and European Parliament. The new text, dated 29 January, makes a few symbolic concessions to the European Parliament's report: New draft (full-text)

Only two outstanding differences within EU member states (indicated by brackets in the text) apparently remain from the discussions on the Council's draft common position. First, the proposal that would override national freedom of information laws by requiring that any request for an EU document which has not been released by the originating EU institution has to be referred by the member state to that institution (Recital 14, Article 5.5). Second, a new proposal (Article 1.5) which says the the new code "shall be without prejudice to rules governing the transmission of documents between the institutions" - in other words, access to documents would be determine not just by the new measure but also by any provisions in as yet in unseen and undrafted interinstitutional agreements.

Critique of the new draft - 18 issues that undermine freedom of information

There are 18 fundamental issues in the draft which either remove existing rights under the 1993 Decision and/or undermine any claim that the new measure will introduce freedom of information for the EU. If adopted in this form the new measure would, in effect, be a rejection of the principle of "enshrining" the right of citizens to have access to EU documents agreed in Amsterdam in June 1997. The intention was to build on the 1993 Decision on access to documents and the improvements made through challenges in the Court of First Instance and to the European Ombudsman. See: Code of access for civil society

These issues are:

The principle set out in Article 1.2. that the Regulation would apply to:

"all documents held by an institution, that is to say, documents drawn up by it or received from third parties and in its possession, in all areas of activity of the European Union."

is then repeatedly negated by the extensions in the exceptions (Article 4: grounds on which documents can be refused) and by the permanent, or virtual, exclusion of whole categories of documents from public access.

1. Article 1.2: says that "sensitive documents shall receive "special treatment" (see point 5 below). DELETE

2. Article 1.5: says the the new code "shall be without prejudice to rules governing the transmission of documents between the institutions" - in other words, access to documents would be determine not just by the new measure but also by any provisions in as yet in unseen and undrafted interinstitutional agreements. DELETE

3. Article 2.3: says that when the three institutions drawn up (or amend) their "Rules of Procedure" (no drafts are available) they shall decide "which categories of documents will be directly accessible to the public". The idea of making documents "directly accessible" by making the text available without a citizen having to go through the procedure of applying for access is a positive one. But by implication this would mean that other "categories" would not be directly accessible and that the practice may vary between the institutions. AMEND

4. Article 3.a: would permanently exclude from access all documents that fall under the so-called "space to think" (policymaking), the "space to act" (implementation, practice) and nearly all memos, letters and e-mails. From the word "excluding" onwards DELETE

5. Article 3.b: defines "sensitive", classified, documents as determined by the "rules adopted by the institution concerned" - where are these rules, what will they say? All refusal of access should be based solely on the exceptions in Article 4. DELETE

6. Article 3.c: defines the meaning of a "third party" and includes as "t